Repeal the Irish Blasphemy Law

History

If you plan to campaign against the new proposed Irish blasphemy law, here are some key points that it would be helpful to be familiar with.

Blasphemy was a common law offence under Irish law when the 1937 Constitution explicitly made it an offence punishable by law. The Defamation of Act of 1961 also made it a statutory crime, but did not define what blasphemy was.

The 1996 Constitution Review Group called for the deletion of the crime of blasphemy from the Irish Constitution, along with other references to the Christian God, religion and religious oaths. Two other All-Party Committees have also called for the removal of religious references in the Constitution.

In 1999, the Supreme Court found the Irish law against blasphemy to be unenforceable. In 2008, the UK abolished its blasphemy law from which ours evolved. And the 2008 Irish All-Party Committee on the Constitution repeated the call to remove the blasphemy reference from our Constitution.

Just last year, Ireland voted at the UN against an attempt by Islamic states to make ‘defamation of religion’ a crime. And yet now the Minister for Justice is seeking to revive this anachronistic medieval crime in modern Ireland.

Background to the Crime of Blasphemy

The crime of blasphemy appears several times in the Christian Bible and the related movie Life of Brian. In the Bible, some characters are stoned to death for blasphemy, and Jesus is condemned to death for the same offence. In Life of Brian, a character is stoned to death for telling his wife that a piece of halibut was good enough for Jehovah.

Under medieval canon law, the Catholic Church punished blasphemers by fining and flogging them, piercing their tongues and making them galley slaves. The English courts justified enforcing blasphemy laws on the grounds that Christianity was parcel of the laws of England, and therefore to reproach the Christian religion was to subvert the law.

In 1656, under English common law, Yorkshire Quaker James Naylor was convicted of blasphemy. He was flogged and imprisoned, his tongue was pierced with a red-hot poker, and his forehead was branded with the letter B.

In 1855, the burning of a Bible led to the last blasphemy prosecution in Ireland before the founding of the Free State. Prosecutions for blasphemy in Ireland effectively ceased when the Church of Ireland was disestablished in 1869.

In 1917, a legal case in Britain (Bowman v Secular Society Ltd) had an impact on how the common law against blasphemy should be interpreted. It was alleged that a bequest to the Secular Society Ltd was invalid, as the object of the company involved the denial of Christianity. The House of Lords decided that this object was not unlawful.

In 1921, Bradford man John Gott was the last person in Britain to be sent to prison for blasphemy when he published pamphlets satirising the Bible, in which he compared Jesus to a circus clown. Gott was sentenced to nine months hard labour and, being of ill health, he died shortly after his release.

1937 – Dail Debate on Irish Constitution

In May 1937 the Dail debated the proposed new Irish Constitution. Two TDs argued that it
was heretical and blasphemous, as it suggested that the Irish people had the authority to enact a constitution and elect rulers, whereas the reality was that all such authority derived from God. The President, Eamon de Valera, replied as follows:

“I want everybody to realise what this Constitution states about authority. In the Preamble, and in the Article that refers to that, there is a clear, unequivocal statement that authority comes from God. That is fundamental. It does not matter what view a group of Catholic theologians may take as to how it comes to the immediate rulers. What we have here is clear at any rate – that authority is from God. That is fundamental Catholic doctrine, and it is here. It is true doctrine.”

In June 1937, the debate continued. The opposition proposed deleting the explicit reference to blasphemy being an offence punishable by law. However, they were not arguing that blasphemy should not be an offence. They were arguing that it was already inherent in the right to free expression that you could not utter blasphemy, and so it was not necessary to include such a prohibition twice.

1937 – Irish Constitution Outlaws Blasphemy

In July 1937 the new Irish Constitution was passed. It contained various references to the Christian god and and to religion, including requirements to swear religious oaths in order to become President or a Judge. The three references most directly related to blasphemy are the Preamble, Article 40 on personal rights, and Article 44 on religion.

The Preamble begins with the words: “In the Name of the Most Holy Trinity, from Whom is all authority and to Whom, as our final end, all actions both of men and States must be referred, we, the people of Eire, humbly acknowledging all our obligations to our Divine Lord, Jesus Christ…”

Article 40.6.1 guarantees the right of citizens to express freely their convictions and opinions subject to public order and morality. It then restricts this right by saying that says that “The publication or utterance of blasphemous, seditious, or indecent matter is an offence which shall be punishable in accordance with law.”

Article 44.1 says that “The State acknowledges that the homage of public worship is due to Almighty God. It shall hold His Name in reverence, and shall respect and honour religion.” Note that this article does not enshrine the rights of citizens to worship this imagined character. Instead, it enshrines the rights of this imagined character to be worshipped.

1961 – Dail Debate on Defamation Bill

In July 1961 the Dail debated a Defamation Bill which included a reference to blasphemous libel. During the debate, Justice Minister Charles Haughey was questioned by Patrick McGilligan, a TD who was also a professor of constitutional law at UCD.

McGilligan: There is no definition anywhere of blasphemy in this Bill. Is there in any of the old Acts?Haughey: Not so far as I am aware.
McGilligan: Where are we then? The offences take in various things, including blasphemous libel. What does it mean?Haughey: Blasphemy is a common law term. It is defined by common law.
McGilligan: Has it anything to do with the established Church and does nonconformity come into it?Haughey: No.
McGilligan: Is there a definition of it?Haughey: Blasphemy is a common law offence. There is no statutory definition of it.
McGilligan: I understood the old common law definition was that blasphemy was subversion of the established religion. Surely, we are getting away from all that?Haughey: It has nothing to do with the established religion.
McGilligan: What has it to do with?Haughey: The common law concept of blasphemy.
McGilligan: Which was anything against the established religion.Haughey: Not necessarily.
McGilligan: It was.Haughey: Everybody knows what blasphemy is.
McGilligan: I should like to see that put into the definition section – blasphemy is what everybody knows it to be.

1961 – Defamation Act Creates Blasphemy Crime

Currently, Section 13 of the Defamation Act 1961 states the following: “Every person who composes, prints or publishes any blasphemous or obscene libel shall, on conviction thereof on indictment, be liable to a fine not exceeding five hundred pounds or imprisonment for a term not exceeding two years or to both fine and imprisonment or to penal servitude for a term not exceeding seven years.” In practice, this law has proved to be unenforceable as there is no definition of what blasphemy consists of.

1991 – Law Reform Commission Recommendation

In December 1991, the Law Reform Commission recommended deleting the reference to blasphemy from the Constitution on the grounds that there was no place for such an offence in a society which respects freedom of speech. The President of the Commission was Justice Ronan Keane, who was then a High Court Judge and later became Chief Justice of Ireland.

The Commission noted that the offence of blasphemy was not defined in Irish law, but that it could in theory consist of three possibilities:

It could mean any questioning of Christian doctrine, which is what it had been from earliest times until the 19th century. This would be totally incompatible with modern conditions, having originated in a period of religious intolerance. It might also be unconstitutional on the grounds of freedom of speech and religious equality.

It could mean an offensive and insulting attack on the Christian religion, which is what it was deemed to be in England. This might be unconstitutional on the grounds of religious equality.

It could mean neither of the above, but whatever the jury deemed it to be in any given case. This would mean that the offence lacked an objective basis.

For practical purposes, the Commission recommended that the reference to blasphemy in the Constitution should be deleted as part of a more extensive revision of provisions which, for one reason or another, were generally considered to be anachronistic or anomalous.

1991 – Law Reform Commission Fallback Position

The Law Reform Commission accepted that it might take some time to change the Constitution, and/or that the Government might not accept their recommendation to do so. For these reasons, they produced a secondary interim recommendation for revising the existing blasphemy law. They expressed three concerns about doing this:

That providing for a new and reformed offence of blasphemy might be regarded as simply encouraging the retention of a law which is anachronistic and anomalous.

That it would be difficult to acceptably define a religion in the context of a modern law of blasphemy.

That any legislation might contravene the European Convention on Human Rights, which require a law restricting freedom of expression to be formulated with sufficient precision to enable a citizen to regulate his conduct.

In this context, their secondary recommendation was that:

The common law offence of ‘blasphemous libel’ be replaced with a new offence of ‘publication of blasphemous matter’.

That ‘blasphemous matter’ be defined as matter the sole effect of which is likely to cause outrage to a substantial number of the adherents of any religion by virtue of its insulting content concerning matters held sacred by that religion.

That ‘religion’ be defined to include Christian and non-Christian religions

That ‘matters held sacred’ be defined so as to exclude criminal offences.

That the defendent knew he was likely to cause outrage

That causing such outrage was his sole intent.

This is reasonably close to the new crime being introduced by Dermot Ahern, with two important differences. One, the Law Reform Commission saw it as an interim fall-back measure, not as a primary recommendation. And two, Ahern’s proposed law merely says causing outrage must be intended, whereas this proposal says that causing outrage must be the sole intent.

1996 – Constitution Review Group Report

In May 1996 the Irish Constitution Review Group recommended that the reference to blasphemy be deleted from the Constitution, along with other religious references such as the references to God in the Preamble, the reference to the homage of public worship being due to the Christian God, and the requirement for Presidents and Judges to swear religious oaths.

The Review Group was chaired by TK Whitaker, and had fifteen members from the fields of law, administration, economics, education, political science and sociology.

With regard to freedom of expression, the Review Group recommended that Article 40.6.1 should be replaced by a new clause protecting the right of free speech which was modeled on Article 10 of the European Convention of Human Rights. It said that the onus should be on the Government to show that restrictions on free speech were objectively necessary.

Between then and 2006 there were ten All-Party Oireachtas reports on aspects of the Constitution. These have been described as Progress Reports, and each has covered one section of the Constitution. The 1998 and 1999 reports recommended removing the requirements that the President and Judges swear a religious oath.

1996 – Blasphemy Case High Court Ruling

In November 1995, after the divorce referendum, the Sunday independent published a cartoon of a priest holding a chalice and communion host, with three politicians turning away from him. The caption was “Hello progress, goodbye Father.” This was a play on one of the slogans used by anti-divorce campaigners, “Hello divorce, goodbye daddy”.

Arising from this cartoon, Dublin man John Corway applied to the High Court for an order allowing him to take a blasphemy prosecution against the Sunday Independent. In October 1996, the High Court ruled that the cartoon did not provide a clear prima facie case for a blasphemy prosecution, and that, even if it had done so, the public interest would not be served by instituting a prosecution.

Justice Geoghegan considered the cases of Bowman v Secular Society Ltd 1917 and Regina v Lemon 1979. He concluded that while the causing of offence is a necessary ingredient of the modern crime of blasphemy, it must accompany an attack on some tenet or practice of the Christian religion to constitute blasphemy. He said it was no longer the law that any criticism of the Christian religion was blasphemous.

1999 – Blasphemy Case Supreme Court Ruling

In July 1999 the Supreme Court rejected an appeal by John Corway against the High Court’s decision that the Sunday Independent had not published a blasphemous cartoon. On the specific issue of the cartoon, the Supreme Court found that no jury would consider that an insult to the Blessed Sacrament existed or was intended.

On the more general issue of blasphemy, the Supreme Court found that, because there is no legal definition of blasphemy in Irish law, “it is impossible to say of what the offence of blasphemy consists”.

The Supreme Court also said that, under the Irish Constitution, “the State is not placed in the position of an arbiter of religious truth”. In effect, the Supreme Court found that the common law crime of blasphemy was inconsistent with the religious equality provisions of the Constitution, and thus had not survived the enactment of the Constitution.

Part of the Supreme Court ruling read:

“From the wording of the Preamble to the Constitution it is clear that the Christian religion is one of the religions protected from insult by the Constitutional crime of blasphemy. But the Jewish religion would also appear to be protected as it seems quite clear that the purpose of the Fifth Amendment to the Constitution was certainly not to weaken the position of the Jewish congregations in Ireland but to bring out the universal nature of the constitutional guarantees of freedom of religion. What then is the position of the Muslim religion? Or the polytheistic religions such as Hinduism? Would the constitutional guarantees of equality before the law and of the free profession and practice of religion be respected if one citizen’s religion enjoyed constitutional protection from insult and another’s did not?”

2003 – European Convention of Human Rights Act

In 2003 the Oireachtas passed the European Convention of Human Rights Act. This obliges the courts to interpret statutes and laws in a manner compatible with the European Convention. If it is impossible to do this, the Irish law still prevails. However, The case law of the European Court of Human Rights establishes that a blasphemy clause is not a violation of Article 10 of the European Convention of Human Rights.

2008 – UK Abolishes Blasphemy Law

In May 2008 the United Kingdom abolished its laws against blasphemy, as part of the Criminal Justice and Immigration Act 2008. It was from the British common law against blasphemy that the Irish common law against blasphemy evolved.

2008 – All-Party Committee on the Constitution

In July 2008 the Joint Oireachtas Committee on the Constitution recommended deleting the reference to blasphemy from the Constitution, on the grounds that a modern Constitution should not expressly prohibit blasphemy, and that the Supreme Court decision of 1999 had already rendered the offence a dead letter anyway.

The Committee suggested that, If there is a need to protect against religious offence or incitement, it is more appropriate that this be dealt by way of legislative intervention, with due regard to the fundamental right of free speech.

2008 – Ireland Opposes ‘Defaming Religion’ Crime

In December 2008 in Durban, the United Nations discussed an Egyptian motion on “combating defamation of religion”. The motion was supported by Islamic states and opposed by European Union states. The motion was passed, but a later conference in April 2009 in Geneva removed references to “defamation of religion” from the final document.

Ireland voted with the other EU states that there should not be such a crime as “defamation of religion”. The Minister for Foreign affairs, Micheal Martin, later explained why Ireland had taken this position. He told the Dail that:

“We believe that the concept of defamation of religion is not consistent with the promotion and protection of human rights. It can be used to justify arbitrary limitations on, or the denial of, freedom of expression. Indeed, Ireland considers that freedom of expression is a key and inherent element in the manifestation of freedom of thought and conscience and as such is complementary to freedom of religion or belief.”

He said that Ireland also supported a UN resolution on “Elimination of all forms of intolerance and of discrimination based on religion or belief.” He explained that there is a difference between “defamation of religion” and discrimination based on religious belief and incitement to hatred.

2009 – Defamation Bill Proposes Blasphemy Crime

The Oireachtas Joint Committee on Justice is currently discussing the Defamation Bill 2006. The purpose of this Bill is to “revise in part the law of defamation and to replace the Defamation Act 1961 with modern updated provisions taking into account the jurisprudence of our courts and the European Court of Human Rights”.

The 1961 Act includes the offence of blasphemy, as quoted above. The Minister for Justice is proposing to replace this reference with a new proposed offence, stating: “A person who publishes or utters blasphemous matter shall be guilty of an offence and shall be liable upon conviction on indictment to a fine not exceeding €100,000.”

“Blasphemous matter” is defined as matter “that is grossly abusive or insulting in relation to matters held sacred by any religion, thereby causing outrage among a substantial number of the adherents of that religion; and he or she intends, by the publication of the matter concerned, to cause such outrage.

30 Comments

gearóidJuly 14, 2009

It will be interesting indeed, if, what is and always has been, Blasphemy, to Bible believing Christians will be prosecuted under the new law. I doubt it, for it is uttered every day in papist churches and papist homes.

I refer to the first 5 words on the second part of a prayer called ‘the Hail Mary’

It is perfectly ok to call Mary the mother of Jesus, but to refer to her as the Mother of God, places her on the level of God, makes her a God, and that is blasphemy

but I feel that it will never be prosecuted, Ireland just wants to, in my opinion, appease Muslims, in case they might attack for Ireland’s coalition status with George Bush in the Iraq war. George qualified the meaning of coalition partner at the start of the war as including aircraft handling.

as a retired soldier and so called papist,there are some out there who should study history and scripture before making comments about issues they are ignorant of. if you really want to help look at our own laws first, especially those of individual states. when those are updated then become a critic of other nations. we have enough to fix here at home.

this has nothing to do with blasphemy, it is a concession to muslims.
soon fundamentalist christians will start resorting to violence it has not
gone unnoticed what muslims have gained from threats and killing.
freedom of speach is more important than someones religeous sensitivities.

I think this has more to do with incitement to religious hatred. something britain has been trying to deal with over the last couple of years but as always someone in the dail has got the wrong end of the stick and produced legislation that is in no way useful or relevant i say sack the clowns and find people who have half an intelect to run the country. that load are a stone round the neck of the people of ireland!

thank you for the information. really quite astonishing ( well not actually really)in this day and age in ireland that those in power and the arms of the state are still knocking around this football, modern society has no place for a law of blasphemy which inherently denys the right to freedom of speech. and in all of this debate what gets ignored is the reach , still, of the church in matters of state, if the government since the 1930s has been trying to get rid of this law ( references from above to dates in 1937 to the present day) who has been pulling the strings of the politicians to retain it? time for a bit of strong willed and strong handed seperation of church and state.

I would like to publish a book in Ireland and it would be a wonderful thing if I could fall foul of this piece of silliness. It would do my sales no end of good. Now I can see that you have to work really hard to be prosecuted. I intend to include in the fly leaf a statement disclaiming any claim to literary, artistic, political, scientific, or academic value for the purpose of defence (although I still want to be paid for the book). I shall assert that I really do intend to cause outrage among the adherents of the religions whose sacred matters I shall be attacking.

Now the question is this: blasphemous matter is defined by 36.(2)(a) as …matter that is grossly abusing or insulting…

Does the adverb apply both to abuse and to insult or only to abuse? I do not intend to abuse anything because it is not abusing to call something which is bad, bad. Bad is a perfectly proper epithet. It would be abusing it to call it good and grossly abusing it to call it excellent. That I have not done. I do intend to damage religion and to show it up for what it is. I hope I will have insulted it appropriately and sufficiently. What I am worried about is whether the Act requires me to have insulted the sacred things grossly in order for me to have committed an offence or whether “regular” or “medium” insulting is good (i.e., bad) enough?

My oh my. I moved to Ireland from London in 1992 and felt like i had stepped back in time (in a good way). But o* m* *o* this law will send us back to medieval politics. Oppose this nonsense that is designed to appease fundamentalist men in frocks of all persuasions.

To my mind this means that no religion is actually a religion, as they all employ “oppressive psychological manipulation”. Why else would otherwise intelligent, sensible, people, base their entire lives around the half-arsed nonsense that is Christianity/Islam/Hinduism/Buddhism etc. etc. etc. etc?

In blasphemy indeed are those that say that Allah is Christ the son of Mary.
Say: “Who then hath the least power against Allah, if His will were to destroy
Christ the son of Mary, his mother, and all every – one that is on the earth?
For to Allah belongeth the dominion of the heavens and the earth, and all that
is between. He createth what He pleaseth. For Allah hath power over all
things.”

Translation Yusuf Ali

Surah 4 – Women verse 155

(They have incurred divine displeasure): In that they broke their covenant;
that they rejected the signs of Allah; that they slew the Messengers in
defiance of right; that they said, “Our hearts are the wrappings (which
preserve Allah’s Word; We need no more)”;- Nay, Allah hath set the seal on
their hearts for their blasphemy, and little is it they believe;-

Translation Yusuf Ali

Surah 5 – The Table Verse 72
They do blaspheme who say: “Allah is Christ the son of Mary.” But said
Christ: “O Children of Israel! worship Allah, my Lord and your Lord.” Whoever
joins other gods with Allah,- Allah will forbid him the garden, and the Fire will
be his abode. There will for the wrong-doers be no one to help.

Surah 5 – The Table Verse 73
They do blaspheme who say: Allah is one of three in a Trinity: for there is no
god except One Allah. If they desist not from their word (of blasphemy),
verily a grievous penalty will befall the blasphemers among them.

Let’s stop refering to this as the “Blasphemy Law”, this is a Persecution Law designed to persecute and prosecute those whose opinions differ from those of the religious orders.It is designed to stiffle criticism and lend some sense of legitimacy to the medieval laws of the religious orders.The fact that this law was adopted so readily and literally by islamic states is testimony enought to this.

I hope you are proud of yourself Minister Ahern, a woman has been sentenced to death in pakistan for Blasphemy and a man has been gunned dwon for defending her right to freedom of speech. You should be made to watch the exceution of that poor woman. You are a disgrace to this nation

Doesn’t this law contravene the Irish constitution on the grounds of equality, that all men and women be treated as equals. If religions are allowed to publish material (with intent) that are offensive to darwinists, agnostics or whatever group without committing a crime but the reverse is a crime, surely that inequality is a breech of the Irish constitution

I guess this is a little late but as the United nations have made comments on this I think people at least should be aware of them. In case they are not here is some information. In July, 2011, the UN Human Rights Committee released a 52-paragraph statement, General Comment 34.
[here is a link: http://www2.ohchr.org/english/bodies/hrc/docs/GC34.pdf%5D

In that statement can be found.

“paragraph 48, “Prohibitions of displays of lack of respect for a religion or other belief system, including blasphemy laws, are incompatible with the Covenant, except in the specific circumstances envisaged in article 20, paragraph 2, of the Covenant. Such prohibitions must also comply with the strict requirements of article 19, paragraph 3, as well as such articles as 2, 5, 17, 18 and 26. Thus, for instance, it would be impermissible for any such laws to discriminate in favor of or against one or certain religions or belief systems, or their adherents over another, or religious believers over non-believers. Nor would it be permissible for such prohibitions to be used to prevent or punish criticism of religious leaders or commentary on religious doctrine and tenets of faith.”

this guarantees your right to say things that are blasphemous. It’s a matter of free speech, pure and simple.

indeed, so much is restricted by us not being allowed to publish material grossly abusive or insulting, to deliberately cause outrage… what a terrible restriction on us.. what next? will it be illegal to publish material that is grossly insulting and abusive based on race or gender? .. when the intent is to cause upset to people of that race or gender?

…. wake up! .. if you don’t know what is rely going on here and think this is really about freedom of speech, well, I doubt there is anything I or anyone else can say to cop you on.

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